962 N.E.2d 1240 (Ind. 2012), 49S00-0910-DI-425, In re Brizzi

Docket Nº49S00-0910-DI-425.
Citation962 N.E.2d 1240
Opinion JudgePER CURIAM.
Party NameIn the Matter of Carl J. BRIZZI, Respondent.
AttorneyKevin P. McGoff, Indianapolis, IN, Attorney for the Respondent. G. Michael Witte, Executive Secretary, David B. Hughes, Staff Attorney, Indianapolis, IN, Attorneys for the Indiana Supreme Court Disciplinary Commission.
Case DateMarch 12, 2012
CourtSupreme Court of Indiana

Page 1240

962 N.E.2d 1240 (Ind. 2012)

In the Matter of Carl J. BRIZZI, Respondent.

No. 49S00-0910-DI-425.

Supreme Court of Indiana.

March 12, 2012

Page 1241

Kevin P. McGoff, Indianapolis, IN, Attorney for the Respondent.

G. Michael Witte, Executive Secretary, David B. Hughes, Staff Attorney, Indianapolis, IN, Attorneys for the Indiana Supreme Court Disciplinary Commission.

Attorney Discipline Action

PER CURIAM.

We find that Respondent, Carl J. Brizzi, engaged in attorney misconduct by making public statements as a prosecutor that had a substantial likelihood of materially prejudicing adjudicative proceedings and a substantial likelihood of heightening public condemnation of the criminal defendants. For this misconduct, we find that Respondent should receive a public reprimand.

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's " Verified Complaint for Disciplinary Action," and on the post-hearing briefing by the parties. Respondent's 1994 admission to this state's bar subjects him to this Court's disciplinary jurisdiction. See Ind. Const. art. 7, § 4.

Page 1242

I. Background

A. The Commission's Allegations.

Respondent was the prosecuting attorney of Marion County, having been elected in 2002 and re-elected in 2006. During Respondent's two terms, the Prosecutor's Office filed close to 100 murder cases, including five death penalty cases. The Commission charged Respondent with the following two counts of misconduct relating to public statements concerning murder cases.

Count 1.

Respondent conducted a press conference on April 10, 2008, announcing the filing of a murder charge against Bruce Mendenhall for the murder of Carmen Purpura, who was last seen at an Indianapolis truck stop. Mendenhall had murder charges pending in Alabama and Tennessee, and he had been previously convicted of murder in Tennessee. According to media reports, Respondent's statements included the following:

• DNA testing of blood taken from Purpura's parents matched blood inside the cab of Mendenhall's truck.

• " When the officer opened up the cab of the truck, you can imagine his surprise, because the cab of the truck was literally awash with blood." Purpura's blood " soaked" the seats of Mendenhall's truck.

• Enough blood matching the DNA of Purpura's parents was found inside the cab of Mendenhall's truck to determine that she could not possibly be alive.

• The " DNA analysis of [the blood] shows that it's not just the blood of one victim, but the blood of several victims."

• The victims were shot after their heads were wrapped in plastic wrap and duct tape.

• A .22 caliber handgun used by Mendenhall in the killings was found in his truck.

• Mendenhall had admitted to the police when arrested that Purpura had been shot in the back of the head at the Indianapolis truck stop, then left inside a vehicle parked at a nearby restaurant, but that he denied being the murderer.

• Respondent was confident that he had enough evidence to convict Mendenhall.

• Respondent was " working with the other jurisdictions to see the quickest way and the best way to punish [Mendenhall] with the ultimate punishment— a capital sentence."

Purpura's body has never been discovered. Nothing further has occurred in the Indiana prosecution because Indiana is deferring to the other states' prosecutions.

Count 2.

On or about June 1, 2006, seven family members, including three children, were discovered murdered in their east side Indianapolis home. The County Prosecutor's Office issued a press release on June 6, 2006, after Desmond Turner and James Stewart were charged with the murders. The press release included the following:

Brizzi said, " According to the probable cause affidavit, Desmond Turner and James Stewart thought there was a large amount of money and drugs at 560 North Hamilton Street. They weren't going to let anyone or anything get in the way of what they believed to be an easy score. There was no money in that house. There were no drugs. Seven bodies were carried out, including those of three children. I would not trade all the money and drugs in the world for the life of one person, let alone seven. Turner deserves the ultimate penalty for this crime."

Page 1243

Regarding the swiftness with which the death penalty was filed, Brizzi said " The evidence is overwhelming. There are several aggravators present, any one of which would merit the death penalty. To do otherwise would be a travesty."

The Charges.

The Commission charged Respondent with violating the following Indiana Professional Conduct Rules:

Rule 3.6(a): " A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

Rule 3.8(f): " The prosecutor in a criminal case shall ... except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused...."

B. The Hearing Officer's Report.

Count 1.

The hearing officer concluded for several reasons that the Commission had not met its clear and convincing burden of proof that Respondent had violated the rules charged in Count 1. The following reasons are based on the hearing officer's perception of weakness in the evidence that Respondent actually made some of the statements at issue:

• The statements that " the victims were shot after their heads were wrapped in plastic wrap and duct tape," that Respondent " was confident that he had enough evidence to convict Mendenhall," and " that a .22 caliber handgun used by Mendenhall in the killings was found in his truck" do not appear as a quotation and Respondent does not recall making these statements.

• Respondent's public comments, while serving as prosecutor, have been misquoted in the media on a number of occasions.

Hearing Officer's Report at 4, 6. The hearing officer also posited the following bases for his conclusion that Respondent had not violated the rules charged with respect to some of the statements:

• The statements concerning DNA analysis, plastic wrap, a .22 caliber handgun, and the large amount of blood discovered were previously documented in the media and/or the probable cause affidavit. " Thus, these statements were based on publicly available information and are protected by the safe harbor provision in Rule 3.6(b)."

• Although the statements about punishing Mendenhall with the ultimate punishment may not have been necessary to inform the public of the nature and extent of Respondent's actions as prosecutor, and although Respondent knew or should have known the statements would be disseminated by means of public communication, the evidence does not meet the clear and convincing standard required to conclude that these comments had a substantial likelihood of heightening public condemnation of Mendenhall or would materially prejudice an adjudicative proceeding.

Hearing Officer's Report at 13.

Count 2.

The Turner and Stewart cases involved Hispanic victims and African-American suspects, resulting in some racial tension in the community. Media coverage of the cases was constant and extensive, and news cameras were present for nearly all court proceedings. Eventually,

Page 1244

the presiding judge, Judge Robert R. Altice of the Marion Superior Court, told both sides to stop commenting about the cases to the media, and the parties agreed. Judge Altice remained concerned about the potential publicity issue and maintained statistics concerning potential jurors who were questioned about pre-trial publicity and their knowledge of the cases.

While Turner's murder case was pending, additional charges of assault and battery on corrections officers were brought against Turner, which resulted in three jury trials occurring prior to Turner's murder trial. Judge Altice presided over each case, and Turner was convicted in each case. Turner ultimately waived his right to a trial by jury in the murder case in exchange for dismissal of the death penalty charge. Turner was convicted of the murder charges during a bench trial in October 2009. Stewart was convicted of murder at a jury trial in December 2009.

The hearing officer concluded that the Commission had not met its burden of proof concerning the charges in Count 2, reasoning:

• Although certain statements in the press release were not necessary to inform the public about the nature and extent of the Respondent's actions as prosecutor, the evidence was not clear and convincing to prove a substantial likelihood of heightening public condemnation of Turner and Stewart or of materially prejudicing an adjudicative proceedings in the matter.

• The delay between the June 6, 2006, statements and the trial dates for Turner and Stewart (mid to late 2009) indicated an extremely low likelihood, if any, that substantial prejudice occurred.

• Judge Altice had no knowledge of any statements alleged in Count 2 of the verified complaint until requested to testify in this matter.

• Pre-trial publicity in the Stewart and Turner jury trials did not affect the court's ability to select unbiased jurors in Turner's three jury trials for battery or in Stewart's jury trial for murder.

• Turner ultimately waived his right to a trial by jury in his murder case in exchange for dismissal of the death penalty charge.

Hearing Officer's Report at 10, 14.

II. Discussion

A. Burden of Proof and Standard of Review.

The Commission carries the burden of...

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13 practice notes
  • Probable Cause Affidavits Open in Kansas, 0515 KSBJ, 84 J. Kan. Bar Assn 5, 21 (2015)
    • United States
    • Kansas Bar Journal Nbr. 2015, January 2015
    • January 1, 2015
    ...and 3.8. For an illustrative opinion on probable cause affidavits and extrajudicial comment by prosecutors, see In re Brizzi, 962 N.E.2d 1240, 1247 (Ind. 2012) (per curiam) (finding that a probable cause affidavit was a public record and that a prosecutor may speak ......
  • The prosecutor's duty of silence.
    • United States
    • Albany Law Review Vol. 79 Nbr. 3, March - March 2016
    • March 22, 2016
    ...(suspending and disbarring various members of the Arizona Bar for violating the Arizona Rules of Professional Conduct); In re Brizzi, 962 N.E.2d 1240, 1249 (Ind. 2012) (imposing public reprimand on prosecutor for his "professional misconduct"); Attorney Grievance Comm'n v. Gansler......
  • EXTRAJUDICIAL STATEMENTS AND PREJUDICE IN THE DIGITAL AGE: CREATING FACTORS TO PRESERVE THE BALANCE BETWEEN ATTORNEY AND STATE INTERESTS IN TRIAL LITIGATION.
    • United States
    • William and Mary Law Review Vol. 61 Nbr. 3, February 2020
    • February 1, 2020
    ...1.0(o) (2007)). (90.) In re Hinds, 449 A.2d 483, 495 (N.J. 1982). (91.) Id. at 500 (Pashman, J., concurring). (92.) See In re Brizzi, 962 N.E.2d 1240, 1245 (Ind. 2012) (noting that a judge must ask whether the statement could cause prejudice, rather than whether the statement actually cause......
  • Szany v. Garcia, 070319 INNDC, 2:17-CV-74-PPS-JPK
    • United States
    • Federal Cases United States District Courts 7th Circuit United States District Court of Northern District of Indiana
    • July 3, 2019
    ...statements based on matters in the public record are protected by the safe harbor provision in Rule 3.6(b)(2). In re Brizzi, 962 N.E.2d 1240, 1247 (Ind. 2012). For the purpose of the safe harbor provision, matters are in the public record if they are in “public governmen......
  • Request a trial to view additional results
10 cases
  • Szany v. Garcia, 070319 INNDC, 2:17-CV-74-PPS-JPK
    • United States
    • Federal Cases United States District Courts 7th Circuit United States District Court of Northern District of Indiana
    • July 3, 2019
    ...statements based on matters in the public record are protected by the safe harbor provision in Rule 3.6(b)(2). In re Brizzi, 962 N.E.2d 1240, 1247 (Ind. 2012). For the purpose of the safe harbor provision, matters are in the public record if they are in “public governmen......
  • Culler v. State, 042417 INCA, 33A05-1611-CR-2702
    • United States
    • Indiana Court of Appeals of Indiana
    • April 24, 2017
    ...proceedings or deny the defendant due process). As such, any error in admitting such testimony was harmless. See Hoglund, 962 N.E.2d at 1240 (finding no fundamental error in admission of vouching testimony from multiple witnesses given the substantial independent evidenc......
  • Hamilton v. State, 122315 INCA, 65A04-1412-CR-592
    • United States
    • Indiana Court of Appeals of Indiana
    • December 23, 2015
    ...of evidence which is cumulative of other evidence admitted without objection does not constitute reversible error.'" Hoglund, 962 N.E.2d at 1240 (quoting Wolfe v. State, 562 N.E.2d 414, 421 (Ind. 1990)). Here, the interviewer's final, objected-to statement that D.P. and A.S. did not ex......
  • 7 N.E.3d 402 (Ind.App. 2014), 32A01-1303-CR-120, Wilkes v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • April 29, 2014
    ...as uncircumcised, we decline to find any additional prejudice in the admission of the evidence discussed above. See, e.g., Hoglund, 962 N.E.2d at 1240 (holding no reversible error from admission of evidence where victim's testimony provided 'substantial evidence of [defendant's] guilt"......
  • Request a trial to view additional results
3 books & journal articles
  • Probable Cause Affidavits Open in Kansas, 0515 KSBJ, 84 J. Kan. Bar Assn 5, 21 (2015)
    • United States
    • Kansas Bar Journal Nbr. 2015, January 2015
    • January 1, 2015
    ...and 3.8. For an illustrative opinion on probable cause affidavits and extrajudicial comment by prosecutors, see In re Brizzi, 962 N.E.2d 1240, 1247 (Ind. 2012) (per curiam) (finding that a probable cause affidavit was a public record and that a prosecutor may speak ......
  • The prosecutor's duty of silence.
    • United States
    • Albany Law Review Vol. 79 Nbr. 3, March - March 2016
    • March 22, 2016
    ...(suspending and disbarring various members of the Arizona Bar for violating the Arizona Rules of Professional Conduct); In re Brizzi, 962 N.E.2d 1240, 1249 (Ind. 2012) (imposing public reprimand on prosecutor for his "professional misconduct"); Attorney Grievance Comm'n v. Gansler......
  • EXTRAJUDICIAL STATEMENTS AND PREJUDICE IN THE DIGITAL AGE: CREATING FACTORS TO PRESERVE THE BALANCE BETWEEN ATTORNEY AND STATE INTERESTS IN TRIAL LITIGATION.
    • United States
    • William and Mary Law Review Vol. 61 Nbr. 3, February 2020
    • February 1, 2020
    ...1.0(o) (2007)). (90.) In re Hinds, 449 A.2d 483, 495 (N.J. 1982). (91.) Id. at 500 (Pashman, J., concurring). (92.) See In re Brizzi, 962 N.E.2d 1240, 1245 (Ind. 2012) (noting that a judge must ask whether the statement could cause prejudice, rather than whether the statement actually cause......

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